Couslon LJ described an essential characteristic of the adjudicator ‘to be able to plan in detail the course of the adjudication from the outset, so as to ensure that the decision is completed on time’. As legend has it – and in no small part thanks to Ariadne – Theseus defeated the Minotaur and escaped the Labyrinth of Crete with nothing more than a ball of thread. This chapter explores whether there exists an adjudicator’s ‘ball of thread’ which might be reliably deployed to timeously escape the labyrinth of an adjudication.

Before embarking on this exploration, it is important to identify from where the adjudicator gets her discretionary powers. The adjudicator is said to have complete discretion as to the conduct of the adjudication provided that this conduct pays due respect to both the rules of natural justice and jurisdiction. These are laid down in the legislation, common law, and adjudication rules. Fundamentally, the adjudicator must reconcile the discord between the right to a fair hearing with the inherent time constraints of adjudication.

Legislative Framework

By way of the Act 108(2)(f) the adjudicator shall take the initiative in ascertaining the facts and the law. Where the Scheme applies the scope of the initiative expressly includes at p(13) that the adjudicator may issue directions as to the conduct of the adjudication, including the timetable and the length of submissions.

Furthermore, the Scheme p(14) & p(15) states the parties are to comply with any request or direction and the adjudicator shall: draw inferences from any compliance failure (Note. it is recommended to warn the parties of the possibility of making adverse findings (Balfour Beatty v Shepherd Construction [2009])); and attach suitable weight to any late submission (possibly inferring a late submission is not afforded the opportunity to derail the procedure).

However, when determining the procedure, the adjudicator should also be mindful of p(12) of the Scheme to “avoid incurring unnecessary expense“, particularly where the value and complexity of the dispute is relatively low. Essentially, the adjudicator is to apply an expedient procedure to the dispute and not to insert the dispute into the adjudicator’s customary procedure.

Initial Directions

Following appointment, the adjudicator might contact the parties and establish some ground rules including lines of communication and issuing the adjudicator’s terms. The adjudicator might inform the parties that following the referral notice she will decide upon a suitable procedure.

Once the referral is received the adjudicator has a more detailed understanding of the complexity of the dispute and therefore able to map out the procedure more precisely. At this juncture the adjudicator will issue the Directions to the parties including a fluid timetable subject to change during the procedure. Further discretionary directions which will not be under discussion in this chapter might relate to jurisdictional challenges, disclosure, meetings, canvassing the parties on any adjudicator’s view etc.

The adjudicator must satisfy herself that she can reach a decision within 28 days or within such time as agreed with the parties. On occasion when the adjudicator cannot satisfy herself with the 28-day limitation period, the adjudicator should take the initiative and immediately seek an extension. In Bovis Lend Lease v The London Clinic [2009], Akenhead J suggested applying pressure such as advising the parties “unless you agree to an extension of time, I will not be able to produce my decision within 28 days“. The referring party would likely agree to the 14 days extension as granted by the Scheme.

With the duration established the adjudicator can then confirm a timetable. Most commonly this will permit a written response (within c. 10 days) and allow a written reply (within c. 5 days). Although no provision in the legislation, it is thought that permitting a response is essential to comply with the rules of natural justice.

The initial directions might also note details such as any further submissions to be granted as necessary and only relate to new points raised in the prior submission. There is no requirement to allow parties to have equal submissions, as tested in NAP Anglia V SunLand Development [2011].

The adjudicator might also consider provisionally scheduling a meeting or a site visit. These requirements will not become apparent until later but having a date reserved will safeguard the timetable and prevent a party challenging the decision on natural justice grounds should they not be available to attend.

Requests & Objections

As the adjudication progresses the adjudicator will have to consider whether further rounds of submissions are desirable. If new points were raised in the final submission, the adjudicator may request a further submission. Both parties will inevitably want to have the last say so the adjudicator will have to consider if any party request is merited. In balancing time and natural justice, the adjudicator might limit the content of submissions in terms of issues and length.

The parties may request changes to the procedure to reflect their circumstances and the adjudicator must decide if she is willing to accommodate. Should a party request a change to the timetable then the adjudicator will need to consider the facts including the reason for the request, the effects of any delay and the resulting prejudice to the other party. It might be possible to accommodate a slight change without prejudicing the other party or it might be that the adjudicator can only accommodate the party after securing an extension of time.

In pursuit of securing an extension of time, the experienced adjudicator might request that the parties discuss between themselves and agree a revised timetable. As a last resort the experienced adjudicator might call a meeting with the party representatives asking each side to justify their positions.

Conclusion

Coulson LJ said an experienced adjudicator should “be able to plan in detail the course of the adjudication from the outset” and as much as that is sound advice it is equally important to have a level of flexibility in the plan, to be able to adapt to the unfolding dispute and to the conduct of the parties. The adjudicator’s timetable is a framework that is subject to change. To give the adjudicators their due, to date no decision has been overturned on natural justice grounds due to a fault in their directions. Coulson LJ said to be bold, and the Courts seem supportive of the need for rigour subjugated to the need for an answer quickly.